April 28, 2020 HUMAN RIGHTS

Banning Immigrants

by Shoba Sivaprasad Wadhia and Mahsa Khanbabai

How We Come to This Issue

Mahsa: In the early ’70s, when my parents and I moved to the United States from Iran, the two nations had a great relationship, or as Donald Trump might have described, they had “fallen in love.” That relationship soon soured, and growing up in western Massachusetts as the only Iranian family at the time of the hostage crisis in a predominantly Polish immigrant town was not easy. It could have been much worse had my father not been a well-respected physician in demand. I learned then what it meant to be an immigrant, to be Muslim, to be Iranian, to be “different” in the United States and to be separated from family in Iran. Family separation continued because it was difficult and expensive for my family to receive a visa and travel to the United States.

Over the years, when we as Americans experienced a tragedy at the hands of a foe, be it a domestic or international player, I worried that “Muslims” or “Middle Easterners” would be targeted as the potential aggressors—be it the first World Trade Center bombing, the Oklahoma City tragedy, or that of 9/11, we dehumanized immigrants from the Middle East a little more each time. But until Donald Trump’s campaign, I couldn’t have imagined that I would hear a presidential candidate call for a “total and complete shutdown of all Muslims entering the United States.”

A young immigration activist outside of the Supreme Court of the United States.

A young immigration activist outside of the Supreme Court of the United States.

Geoff Livingston from Flickr.

Shoba: During the tragic September 11, 2001, terrorist attacks, I was working as an immigration attorney at a boutique immigration law firm in Washington, D.C. The impact these attacks had on Arab, Muslim, and South Asian communities in the United States was palpable. It was my first window into how an administration can use a label like “national security” as a proxy for selective immigration enforcement against specific communities. One of the most controversial policies issued by the then George W. Bush administration was a registration program known as NSEERS, or National Security Entry-Exit Registration System. That program targeted visitors entering or exiting the United States and certain male visitors residing in the United States temporarily. Beyond gender, the domestic portion of NSEERS applied only to nationals from 25 countries, 24 of which have Muslim-majority populations. Despite the fact that the NSEERS program was discredited for not having national security value and that it affected only certain nationalities where one religion is predominant, every court upheld the program as lawful under the U.S. Constitution, statutes, and regulations.

What I did not realize in living through the post-9/11 era during which NSEERS and related policies persisted was how it prepared me mentally for the groundbreaking announcement made by now President Donald Trump on the campaign trail calling for a “complete shutdown” of Muslim immigration into the United States. On the heels of a multiyear effort by community leaders and immigration attorneys and advocates to pull the regulation giving rise to NSEERS before the 2017 inauguration was the moment of truth that what might unleash in the time of Trump would be even greater in scope and impact.

Immigration activists protesting against the Muslim Ban.

Immigration activists protesting against the Muslim Ban.

Miki Jourdan from Flickr.

Three-Year Anniversary of the Muslim Ban—How We Got Here

President Trump fulfilled part of his campaign trail promise to implement a total ban on Muslim entry into the United States, and on January 27, 2017, he released the first of four executive actions focused on the wholesale exclusion of nationals from predominantly Muslim-majority countries. The first action was published as an “executive order” and blocked entry for any person from seven countries: Iran, Iraq, Libya, Sudan, Syria, Somalia, and Yemen. In the first weekend following this executive order, there were a number of immigration attorneys and advocates who flooded to major international airports, holding signs for Muslim travelers and triaging those being turned away or detained in an often chaotic environment.

The courts blocked the first executive order, but President Trump swiftly issued a second ban, also an executive order, on March 6, 2017. As with the first, this ban excluded nationals from entire countries and dropped Iraq. The second version also included a specific list of exemptions and a waiver scheme, presumably to stave off the chaos caused by the first version. The second executive order was also overturned by federal courts that concluded that the ban was likely unlawful on constitutional grounds, statutory grounds, or both. The litigation behind version two was more complicated, but in the end, it was terminated as a result of its own expiration date.

A third ban was issued on September 24, 2017, this time as a presidential proclamation. This proclamation initially targeted all immigrants (those seeking admission permanently) and several nonimmigrant categories (those seeking admission temporarily) nationals from seven countries: Iran, Somalia, Libya, North Korea, Syria, Yemen, Chad, in addition to certain visitors from Venezuela. Eventually, Chad was removed from the list, but the proclamation remained a subject of significant litigation in various courts across the country and was eventually appealed to the U.S. Supreme Court. After lower courts concluded that the ban is likely unlawful on statutory or constitutional grounds, the Trump administration appealed these decisions. Even before the Supreme Court issued a decision on the merits in June 2018, it made a decision several months earlier that effectively reinstated the ban. The Court’s decision to uphold the ban was a striking blow to affected individuals and families, in addition to the attorneys and advocates who challenged versions of the ban. More recently, on January 31, 2020, President Trump announced an expansion of the existing proclamation to cover certain nationals from the following countries: Eritrea, Nigeria, Tanzania, Sudan, Burma, and Kyrgyzstan. With the expansion, the proclamation now covers 13 countries.

How People Are Affected by the Muslim Ban Today

The effect of the proclamation is significant, as many of those banned from the United States are in close family relationships recognized under our immigration law as eligible for an immigrant visa. When Congress wrote the immigration statute (Immigration and Nationality Act), the vast majority of so-called “immigrant visas” were reserved for applicants that claimed family relationships in which at least one of the family members was a resident in the United States legally, like the spouse of a U.S. citizen or the minor child of a green card holder. The choice by the administration to block people in close and legal relationships is striking and out of step with this nation’s history and Congress’s choice to eliminate national origin quotas in 1965. Many families are affected by the Muslim Ban. The new expansion promises to separate even more families, as it impacts nearly all the green card applicants of four of the new countries: 7,840 Nigerians received immigrant visas in fiscal year 2018, for example, along with 1,282 individuals from Myanmar, 894 from Eritrea, and 585 from Kyrgyzstan.

The current ban also affects a number of visitors from seven countries who would otherwise be eligible for temporary, nonimmigrant visas, and, in doing so, it prevents mothers, children, and grandmothers from witnessing life’s milestones. We have listened to the heartbreak of parents unable to attend their children’s graduations, of spouses unable to be present during a loved one’s life-threatening illness, and of new mothers being forced to give birth to children alone, thousands of miles away from their family. Like with immigrant visas, Congress was clear about the various ways a person might be eligible to apply for temporary status under a “nonimmigrant visa,” but these options remain elusive for those covered by the ban.

The proclamation includes a “waiver” process for affected individuals who can show undue hardship if denied entry, that their entry is in the national interest, and that they pose no national security threat. While the proclamation places the burden on the individual to prove eligibility, the Department of State has purported that consulates “automatically” consider a person’s waiver eligibility if it is determined they are subject to the ban. In fact, some consulates refuse to review waiver “packets” or related evidence submitted by the applicant or their attorney in support of a waiver. By refusing to accept evidence from the individual who is stated by the proclamation to have the burden, the confusion surrounding waivers has intensified. Furthermore, the waiver scheme has long been criticized as “window dressing” or a “sham” by a range of voices from Supreme Court Justice Stephen Breyer, to organizations like Muslim Advocates, to scholars and immigration attorneys.

Take the case of Kamiar Hashemi, an Iranian national who was a 100 percent bone donor match of his U.S. citizen brother who was dying of cancer. Hashemi applied for a visitor visa at the U.S. Embassy in Yerevan in February 2018 hoping to make it to the United States in time to undergo the bone marrow transplant process to save his brother’s life. The consular officer heard the evidence regarding the undue hardship prong, that Hashemi desperately sought to help his brother who would likely die if he didn’t get to the United States in time. The consular officer also considered the national interest prong, that a U.S. citizen’s life could be saved if the visitor visa was granted, and that a team of U.S. doctors had planned the treatment expecting Hashemi’s arrival. Hashemi’s case languished for weeks, until significant legal and national media pressure was exerted by one of the authors who represented Hashemi, and the administration was shamed into issuing a visa. The administration continues to maintain an opaque waiver process, providing little guidance to the public.

Practice Pointers for Lawyers Working with Families Affected by the Muslim Ban

Immigration attorneys play an important role in completing visa applications and supporting documents, but more so with developing strategy. There are several strategic considerations that should be reviewed to maximize the chance of a successful visa application. The first consideration is whether an alternative visa category can be used to avoid the travel ban altogether, for example, an F or J visa (students and scholars) rather than an immigrant-based application for an Iranian, Libyan, or Yemeni citizen.

Choosing the appropriate consular post for the visa interview is also critical, and most important is the preparation of the applicant for the interview based on knowledge and experience with specific consular posts. If a consular office is refusing to accept documents or packets prepared by attorneys in support of a client’s waiver, then some might question the utility of hiring an attorney. However, immigration attorneys play an important role with their knowledge about how a particular consulate interacts or responds to waiver requests or to advocate for expediting a client’s immigrant visa interview. For example, the effective date for an expanded ban affecting certain nationals from six countries was February 21, 2020, so efforts by attorneys to schedule a visa interview before this date was valuable.

Further, attorneys can also help clients with languishing cases decide what the next step is, be it requesting congressional assistance to the filing of a mandamus suit in federal court or demanding case adjudication. Individual or impact litigation challenging one or more elements of the ban, such as the waiver process, is essential. One pending lawsuit, Emami v. Nelson, challenges the waiver process on the grounds that it violates the State Department’s own guidelines regarding waivers, as well as the Due Process Clause of the Fifth Amendment.

Recommendations for Reform

One lesson from the litigation related to the Muslim Ban is that the executive branch wields great power and that the courts will not save us, leaving Congress to play an important role in amending the immigration statute. Congressional oversight powers have never been more important in the battle to control executive branch overreach.

 One piece of legislation known as the No Ban Act would do just this, by terminating the existing travel ban and prohibiting future bans that discriminate on account of religion or place of birth. There are 216 co-sponsors of the No Ban Act, which was scheduled for a full mark up in the House of Representatives on February 12, 2020. Representative Judy Chu (D-CA) and Senator Chris Coons (D-DE) are lead co-sponsors on the No Ban Act, which has also earned support from a range of civil rights organizations, advocacy groups, and immigration scholars.

A future administration should take a serious look at the kind of immigration policy and America it would like to see. We hope a future administration will terminate the bans and support immigration policies that welcome newcomers and restore America as a land of opportunity and promise.

Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and clinical professor of law at Penn State Law in University Park. She directs the Center for Immigrants Rights Clinic.

Mahsa Khanbabai is the founder of Khanbabai Immigration Law and has dedicated her legal career to immigration issues, representing individual, nonprofit, educational, and business clients.